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26 August, 2013

Liberation Music Takes on Lawrence Lessig

The haven of the Internet for all that is video, YouTube, often presents an interesting situation for both copyright holders and content distributors. While there are guidelines and measures in place on YouTube's part to prevent infringing material from being uploaded to the website, often this type of content slips through the cracks. In order to address issues such as this, content owners can submit a copyright infringement notification, effectively having the video removed from the service. There have been instances where content has been frivolously claimed to infringing copyright, causing legitimate videos to be removed from the site when there really is no basis for such a claim. In a recent turn of events such a claim was submitted over a video of a lecture by Lawrence Lessig, arguably one of the greatest legal minds in modern copyright; and Mr. Lessig chose to take action.

The Electric Freedom Foundation has taken action on behalf of Mr. Lessig in a recent complaint to the District Court of Massachusetts which involves the takedown of a lecture video by Mr. Lessig entitled "Open". In their complaint the EFF argue that Liberation Music, an Australian record company, have frivolously claimed that Mr. Lessig's lecture, which contained a short piece of the song Lisztomania by Phoenix, infringed their copyright due to the use of the song which is owned by the record company. The EFF claim that the use of the song fell under fair use, and therefore would not be an infringement of copyright.

In addition to seeking the use of the song to being declared fair, Mr. Lessig is also seeking damages under 17 USC § 512, which limits the liability of parties in relation to materials online. While the provision protects certain uses of materials it also provides relief in the instance of misrepresentation, which means that should a copyright holder submit a claim for infringement, knowing that it does not, they can be held liable for damages.

Lawrence Lessig was just as baffled as you were over the claims

In expressing his reason to take action Mr. Lessig stated that: "The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them... I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight." Given the trigger-happy nature of some DMCA takedown claims, Mr. Lessig's position can be argued to being completely valid, but raises the concerning notion that it needed to happen to one of the premier figures of copyright for there to be action taken against these misuses. Should Mr. Lessig prevail in his claim, companies surely should be more careful when submitting their claims in the future, and providing an avenue for any frivolous claims should the companies not take adequate steps to insure their claims are valid.

Clearly this matter will be taken to court, as Mr. Lessig's intentions are not to seeking merely monetary compensation, but to set a precedent. The future of the case shall be discussed once it has been heard in the District Court sometime later this year.

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The Author

Jani Ihalainen (LL.B. (Hons), LL.M.), is a law graduate with a passion for all that is intellectual property law, residing in London, UK.
He also currently works for an international law firm in the City of London.

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